Celgene Must Face Humana Suit on ‘Supracompetitive’ Drug Prices

Insurer Humana Inc. can proceed with a suit alleging drugmaker Celgene Corp. violated federal antitrust law by engaging in conduct that led to “artificially high” prices for the drugs Thalomid and Revlimid, a federal court in New Jersey said.

Humana’s 2019 suit, alleging Celgene engaged in improper actions between 2006 and 2009 to protect its monopoly on the drugs, was timely under the continuing violations doctrine, the U.S. District Court for the District of New Jersey said.

The Clayton Act sets a four-year limit for filing cases alleging violations of the Sherman Act’s monopoly provisions, the court said. But, under the continuing violation doctrine, a new cause of action accrued each time Celgene sold the drugs at the allegedly inflated prices, it said.

Judge Esther Salas refused to dismiss the lawsuit, but Humana still must prove its claims. She also ordered Celgene to again move to dismiss the case on other grounds because of five other related cases filed against the drugmaker in the court.

Celgene can file a single consolidated brief in the cases, and the other plaintiffs—including United Healthcare Services Inc. , Blue Cross Blue Shield Association, and Cigna Corp.—can file a consolidated opposition brief, Salas said.

Celgene, a Bristol-Myers Squibb Co. subsidiary, holds patents for Thalomid, a leprosy medication, and Revlimid, a related drug that treats certain blood cancers. Thalomid is the branded version of thalidomide, the morning sickness drug banned in the 1960s.

The branded drugmaker schemed to keep generic versions off the market in order to preserve its monopoly, Humana said.

It allegedly refused to give potential generic competitors samples needed to test for bioequivalence, filed “sham” patent infringement litigation, and entered into “pay-for-delay” settlements, Humana said.

If not for these actions, less-expensive generic drugs could have reached the market as early as 2006, Humana said. The delay caused enormous increases in the prices Humana paid for Thalomid and Revlimid, it said.

Under the continuing violations doctrine, Humana was injured each time it bought the drugs at a price allegedly artificially inflated as a result of Celgene’s actions, the court said.

The statute of limitations thus began to run when Humana bought the drugs, not the date when Celgene engaged in the conduct that allegedly led to the high prices, the court said in Wednesday’s unpublished opinion.

Humana therefore may sue for damages it incurred beginning in June 2014, the court said.

Lowey Dannenberg PC represents Humana. Pashman Stein Walder Hayden PC represents Celgene.

The case is Humana, Inc. v. Celgene Corp., D.N.J., No. 19-cv-7532, unpublished 4/27/22.